RM Bill: questions and answers

From 24 to 26 February, Chapman Tripp ran a Hothouse seminar: Understanding the changes to the Resource Management Act. A series of questions and answers were generated from this exercise. These are set out below for your further information. If you did not attend the seminar and would like to receive a full set of the Hothouse materials which included a briefing on the Bill, please contact us.

How will the reforms change the planning document process, and how will the approach of only appealing planning documents on points of law work?

The key initiatives for streamlining planning processes are:

to remove the “further submission” stage (this proposed to be replaced by a discretion for Councils to “seek the view of any person that it considers may be affected by a matter raised in a submission")

to relieve Councils of their present duty to review plans every 10 years (to be replaced by a generic obligation to instigate a review if the Council thinks the plan no longer assists it to carry out its functions, and a new power for the Minister to direct a review)

to stop appeals challenging a whole plan, and

to limit all appeals to questions of law (unless the Court grants leave).

Section 32 remains essentially unchanged.

In terms of how questions of law appeals would work, the Bill as currently drafted fails to address key matters of detail. At a fundamental level, questions such as how the Court will handle multiple plan appeals (present practice being that they are heard together), especially when some may be limited to questions of law and other related appeals opened more broadly on the merits, are simply not addressed. Nor is the position of section 274 parties in appeals clear. Even in dealing with single plan appeals, it’s unclear how far the Court will be able to go in its determination (e.g., whether it can direct changes to a plan, or must refer matters back to the Council). Also, the Court retains its section 293 powers to direct plan changes going beyond the scope of an appeal. This will need to be progressed further during the select committee process.

I understand that the Bill proposes that the public will no longer have ability to make submissions on proposed plan changes put through by councils (and private plan changes)? This has the potential to be very concerning for major industrial players where gentrification of industrial areas occurs and reverse sensitivity is not fully considered by councils at the time.

The Bill does not remove the ability for submitters to make submissions on proposed plan changes. Rather, the Bill removes the “further submission” stage of the plan process. This means that once submissions are lodged, submitters can no longer lodge a further submission commenting on other submissions received. Instead, the Bill would provide a discretion to Councils to seek the views of those it considers may be affected by a matter raised in a submission. However, whether or not your views are sought by the Council in this way, if your original submission on the plan is not sufficiently broad in what it asks for, you could be left legally unable to challenge what other submitters might be seeking in their submission even if their relief would have a significant impact on you.

We agree that this could pose risks of the kind you mention. Let’s assume you are an industrial activity in an established industrial zone, your submission is in support of the proposed plan zoning because it continues to protect your operations. Another submitter seeks to have changes made to policies, rules, or performance standards within or adjacent to an established industrial zone, the effect of which could be to open up the industrial zone or its buffer area to “gentrification”. If your submission does not address the particular policies, rules or performance standards which this submitter seeks to change or add, you may be left legally unable to challenge this before the Council or on appeal (leaving aside for the moment the further constraint of “questions of law” appeals). Your best remedy in this case could be judicial review.

Bear in mind too, the Bill proposes additional restrictions for trade competitors wishing to make submissions on a resource consent application.

I understand the Government proposal removes the requirement for a Council to re-advertise their scheme after 10 years from becoming operative (I guess more like 25 years from time originally promoted). This removes a chance to comprehensively argue a wrong zoning etc and the only avenue to correct this is a private plan change which is expensive and with all the risk on the applicant. Is that correct and does removing the 10 year relook remove a fundamental premise in the RMA that allowed a scheme to evolve?

Yes, the Bill proposes to remove the present obligation on Councils to undertake a full plan review every 10 years. We agree that developers, infrastructure providers and others may be forced to initiate more private plan change requests and/or rely on greater use of the National Environmental Standards to patch up outdated plans.

Removing the Council’s obligation to update plans will risk plans becoming outdated as technologies improve and Councils will have less accountability for keeping their plans up to date.

Whether or not these problems would arise depends on a number of factors. We expect that well-performing Councils will continue to be so – in fact their ability to perform well may be enhanced by being able to target their efforts in terms of what is changed in the plan and when. Such Councils could be expected to take a responsible approach to deciding upon full review too. On the other hand, there could be a temptation for Councils to run down their planning investment because the dropping of the 10 year review means they can no longer be cleanly held to account. If the Minister actively uses the new power of directing review, this could help deal with the laggards.

How will the new Environmental Protection Authority (EPA) affect wind farm applications?

At this stage (phase 1 of the reforms), the EPA will merely be the body responsible for receiving and processing resource consent applications and notices of requirement for projects which are of national significance. The EPA will recommend to the Minister whether a project should be called-in. In other words, the EPA will carry out the tasks which the Ministry for the Environment (MfE) already carries out in relation to projects which are called-in to be considered by a Board of Inquiry. Functions of the EPA will be carried out by the Secretary for the Environment until an EPA is actually created (in phase 2 of the reforms).

The phase 2 reforms are expected to see a significant expansion of the EPA’s functions, and we understand this could include expanded functions in the preparation and administration of National Policy Statements (NPSs) National Environmental Standards (NESs), both of which have significant potential to affect wind farm applications.

As for call-in itself, indications are that the Minister is determined to have this option far more frequently used (i.e. a trebling at least). Establishment of an EPA will be certainly relevant to this, in terms of providing more targeted and strengthened administrative support resources.

What changes are contemplated, if any, relating to:

Working in the coastal zone, will the changes make it easier to operate in there, below the mean high water springs?

Designations, it seems that there is more power being allocated to local authorities! I just don't buy the sales job that it makes no difference, seems to me that it is contrary to the streamlining goals of the reforms. I would be interested in your comments.

The Bill would change the RMA so that applications for restricted coastal activities are decided by the relevant regional council (rather than the Minister of Conservation). This may not necessarily make it easier to carry out activities in the coastal marine area though, or even make the process of gaining consent quicker. The Minister is specifically given the right to appeal against decisions on restricted coastal activities, and may feel the need to exercise that right if he has less influence over the decision itself.

Resource consent applications for activities in the coastal marine area which are not restricted coastal activities will only be easier to the extent gaining normal resource consents may become easier (due to changes to notification, the ability to request an independent commissioner to decide the application, the ability to request an application be called-in etc).

With respect to the changes to designations, we agree that they would give more power to local councils.

The most obvious example of this is the change to replace the present recommendation role of Councils on requirements with the power to make the decision. A consequence of this could be a greater incidence of appeals – especially on decisions to modify requirements and/or impose conditions. (The Bill leaves the Council’s decision making powers very open ended.)

One of the common features of projects for which the designation process is designed is that they deliver national and/or regional benefits, but cause significant locally-experienced effects. Effective NPS, NES and use of call-in are ways these trade-offs can be managed. However, at least for the foreseeable future, there is no assurance that these central intervention tools will be sufficient in themselves.

We consider the Bill has failed to properly take into account the important role notices of requirement play in protecting intended works from land uses which could compromise them, and the linkage these powers provide to the Public Works Act 1981 especially for network utility operators.

The Bill would also convert the outline plan process into one enabling territorial authorities to require changes to outline plans of works under a designation. Again, the Bill gives no guidance as to the scope of this new power. It has the potential to be seriously disruptive to the ability to efficiently maintain and upgrade existing infrastructure.

Background Cabinet and other papers reveal very little as to the rationale for this change, other than statements in the Technical Advisory Group paper to the effect that it is not appropriate for requiring authorities to have the power of decision. The requiring authority’s decision on Council recommendations is of course able to be supervised/overturned etc by de novo Environment Court appeals. Of course, it is open to the Minister to remove requiring authority status in such cases and we are not aware of any example since the RMA came into force where the Minister has done so for abuse reasons. There is no evidence provided in the papers that the powers have been abused.

How do these two relate:

Ability to go direct to E Court for consents

Appeals limited to points of law

The Bill proposes that applicants will be able to request that their consent application go straight to the Environment Court, rather than having a Council level hearing first. The proposal to limit appeals to points of law only applies to plan appeals and not consent application appeals.

Does this mean a whole new Environment Court process that is not related to the appeal process?

Cases on the direct referral track will be heard for the first time in the Environment Court and would no longer have a Council hearing. Therefore, a direct referral proceeding does not arise from an appeal against a Council’s decision.

We think you have an interesting point as to what direct referral means for the role of the Court. Direct referral for national significance cases is a feature of the present RMA, but rarely used. It has some pragmatic attraction, but if direct referral becomes far more common and open to all types of application (so long as a Council agrees), does this mean the Court is becoming more a consent authority for these purposes? Is that a proper role for a Court? Perhaps some gateway tests ought to be required to be met for entry so there’s not a clogging problem – e.g. related to public interest and the orderly/expeditious discharge of the Court’s business? This is possibly another point that will need to be progressed further during the Select Committee process.

Is there anything within the Bill about anti-competitive town planning legislation? e.g. competition between this area and that area?

The focus of this Bill is trade competition in the context of RMA processes, rather than, for instance one zone competing against another per se. But, we think the change to refer also to “effects of trade competition” raise some questions as to whether Councils will remain as able to apply emerging “retail distribution” zoning approaches.

Is there a hierarchy of papers to look through in order?

A good starting point is the Cabinet Papers located on the MfE’s website (see below), as they assist in understanding the logic of the Bill.

It’s also useful to have a look at the Technical Advisory Group (TAG) Report and then move on to reading the Bill. Note, the TAG report is just a recommendation.

Does the fast track regime push people towards the adversarial approach, and how does that sit with what we’ve become accustomed to in regard to mediation and working through issues?

Great question. As you’ve noted, with fast track, there’s no longer the built-in mediation or other features we are accustomed to which help to work through issues and resolve conflicts. The onus will come back to the applicant to proactively work to reduce obvious conflict points, and very much ahead of formal fast track processes. If an applicant wishes to proceed on the fast track option, their applications should not solely include thorough technical analysis. As critical at least will be excellent consultation and negotiation with key stakeholders and other interested parties in order to inform a well-balanced project and application. Otherwise, there will be a high risk of failure, especially given there is only one hearing on the merits.

What’s the community public interest dimension of this Bill? Is it significantly biased towards big business?

The crux of that question comes down to whether or not the planning processes truly enable effective participation. If the RMA were to slant towards business and away from communities that will cause conflict and not resolve issues. The RMA has not served communities, interest groups or anyone particularly well by tying all parties up in adversarial processes. The key to answering your question is: will the planning process give everyone a fair shake at the stick? That requires quality independence, proper and robust enquiry. To reduce de novo appeal rights, we have to have a quality assured planning process to serve everyone’s interests.

Has the Ministry thought about what the reforms are going to do in terms of increasing the number of matters that go to the Environment Court/ Board of Inquiry?

Answer from Ministry Official

Our view is probably not much change, as some of the cases to be heard by a Board were going to end up in the Environment Court anyway. Around about 47-50% of the cases in the Environment Court at the moment are to do with plan appeals and we think that we can have less plan appeals clogging the resources of the Court. There is probably something in the details of the RIS (Regulatory Impact Statement).

Our thoughts

Another dimension is that it’s not simply a numbers game to the Court. It’s about whether the Court can deal with matters that are strategically important to a community in a timely fashion.

Will the removal of the non-complying activity category result in more activities classified as prohibited?

Yes there is a risk of this, perhaps more so for regional plans than district ones. Under the Bill, Councils are required to reclassify any non-complying activities in the plan to another activity status (including prohibited activity status). After three years, if a plan still contains a non-complying activity, it would be read as if it were classified as a discretionary activity. We expect in most cases, sound Council practice could be to choose a restricted discretionary or discretionary categorisation, backed by clear objectives/policies. But, in some cases, Councils may consider that their policy preference is to ban the activity and to force plan change as the only option to change that – hence choosing prohibited activity categorisation in such cases. In a district plan context, property right impacts are likely to be a significant disincentive to prohibited activity classification. One consequence could be that industrial, major infrastructure and other such activities could become much more exposed to “reverse sensitivity” risks, if non-complying activity is dropped as a category.

Conclusion

You will note from our answers that there is a certain lack of clarity around how the Bill will provide a clearer, faster and more efficient consenting process. Our analysis of the Bill in our briefing note “The RM (Simplifying and Streamlining) Bill: raw-boned but promising” may be helpful to you in identifying areas of the Bill that invite refining. You can download the pdf above.